Common probate problems

Probate problems and disputes are not uncommon.  Probate and estate administration is complex, so it is perhaps unsurprising that things can often go wrong.

Executors

Acting as an Executor is no small undertaking. Many underestimate the responsibility, time and complexity involved. As well as registering the death, reviewing the Will, and dealing with any funeral wishes, Executors must:

• Apply for the Grant of Probate/ Representation – to prove the Executor (or Administrator where there is no Will) has the legal authority to deal with the deceased person’s estate.

• Collect and catalogue the estate (possessions, property, money, and investments)
• Inform relevant government agencies, banks, building societies, insurance companies, and close the deceased’s accounts.
• Liquidate assets – sale of property for example.
• Pay Inheritance Tax, if applicable.
• Settle outstanding debts of the deceased.
• Distribute the contents of the estate as directed under the Will (or the Rules of Intestacy).

These are complex matters and legal advice is recommended. Common issues we see with Executors include:

• Not acting properly or failing to fulfil all their duties.
• Failing to interpret the person’s Will correctly. Perhaps the Will has been poorly drafted, or it contains ambiguities with certain aspects open to interpretation.
• Not distributing the estate properly or settling any debts as required.
• No longer wishing to act as Executor. Perhaps the Will was made many years previously and the Executor no longer feels capable of acting.
• Failing to complete the probate forms correctly or making mistakes with filing these as required.
• Failing to complete HMRC forms correctly.
• No knowing about reliefs that can be claimed, which can reduce the estate’s Inheritance tax liability.

Dying without a Will

If a person dies without a Will, then the Rules of Intestacy will apply.  This can lead to disputes where family members feel the intestacy rules have not distributed the estate as the deceased would have wished.

Without a Will, no Executor has been appointed. The list of who can act as Administrator instead is laid down and applied in this strict order:

• spouse/civil partner
• children (over 18)
• living parents
• siblings
• grandparents
• aunts/uncles

Beneficiaries

It may be the case that one or more of the beneficiaries is ‘missing’. Perhaps the deceased lost contact with them, and there are no longer any up-to-date contact details for them. This can delay the probate process as efforts are made to locate the person concerned.

Another issue is where there are disputes between beneficiaries. This is becoming increasingly common, leading to a contesting of the Will. Of course, such disputes can cause many issues and delay the granting of probate.

What happens if one of the beneficiaries is bankrupt? When someone has been declared bankrupt a trustee in bankruptcy takes over their financial affairs. Any inheritance therefore must be paid to the trustee, and not to the bankrupt person direct.

Probate Registry delays

Delays at the Probate Registry continue to be an issue. Before you can begin to deal with the estate of a deceased person, you must obtain a Grant of Representation from the Probate Registry. This is the legal document that confirms you have the right to settle and distribute the estate. Current guidance says this can take up to 16 weeks from form submission, and longer where additional information is needed.

Tale legal advice to ensure you have completed all forms correctly and have provided all the required information/documentation.

At Bird and Lovibond Solicitors we have specialist Solicitors who can act on your behalf and take all the hassle, stress and worry away from you. We undertake probate work at all three of our offices in Ruislip, Uxbridge and Greenford.

For more information please contact:

Ruislip Michelle Everest meverest@bird-lovibond.co.uk or Kiran Sami ksami@bird-lovibond.co.uk

Uxbridge Amandip Dhaliwal adhaliwal@bird-lovibond.co.uk

Greenford Kylie Kallay kkallay@bird-lovibond.co.uk